United States District Court, D. South Carolina, Florence Division
matter is before the court pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure. Plaintiff, proceeding
pro se, filed his Complaint (ECF No. 1) on July 29,
2019, alleging that Defendants violated his constitutional
rights. Defendants filed a Motion to Dismiss (ECF No. 17)
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The court issued an Order (ECF No. 19) on
September 27, 2019, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Plaintiff that failure to respond to the Motion to Dismiss by
October 28, 2019, could result in the dismissal of his case.
On November 6, 2019, after Plaintiff filed no response, the
Magistrate Judge issued his Report and Recommendation
(“Report”) (ECF No. 24), recommending that
Plaintiff's action be dismissed with prejudice for
failure to prosecute, pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure.
STANDARD OF REVIEW
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e) for
the District of South Carolina. The Magistrate Judge makes
only a recommendation to this court. See Mathews v.
Weber, 423 U.S. 261, 270 (1976). The recommendation has
no presumptive weight. Id. at 270-71. The
responsibility to make a final determination remains with
this court. Id. As such, the court is charged with
making de novo determinations of those portions of
the Report to which specific objections are made.
See 28 U.S.C. § 636(b)(1); see also
Fed. R. Civ. P. 72(b)(3). The court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
Report. See 28 U.S.C. § 636(b)(1).
Rule 41(b) of the Federal Rules of Civil Procedure, a
defendant may move to dismiss an action or a claim against it
when “the plaintiff fails to prosecute or to comply
with these rules or a court order.” See Fed.
R. Civ. P. 41(b). “The Federal Rules of Civil Procedure
recognize that courts must have the authority to control
litigation before them, and this authority includes the power
to order dismissal of an action for failure to comply with
court orders.” Ballard v. Carlson, 882 F.2d
93, 95 (4th Cir. 1989).
court in Davis v. Williams developed a four-factor
test to determine whether a district court has abused its
discretion in dismissing a case with prejudice under Rule
41(b). See 588 F.2d 69, 70 (4th Cir. 1978).
Dismissal with prejudice “should not be invoked lightly
in view of ‘the sound public policy of deciding cases
on their merits.'” See Id. at 70 (quoting
Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir.
1974)). The district court should “balance the
considerations of sound judicial administration”
against that public policy by applying four criteria:
“(1) the degree of personal responsibility on the part
of the plaintiff; (2) the amount of prejudice to the
defendant caused by the delay; (3) the presence or absence of
a ‘”drawn out history” of
“deliberately proceeding in a dilatory fashion;”
and (4) the effectiveness of sanctions less drastic than
dismissal.” See 588 F.2d at 70 (quoting
McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.
Fourth Circuit, however, has found that “the four
factors . . . are not a rigid four-pronged test.”
Ballard, 882 F.2d at 95. “The propriety of a
dismissal [under Rule 41(b)] depends on the particular
circumstances of the case.” Id. When it has
given a reasonable warning and a plaintiff has failed to heed
that warning, a court has “little alternative to
dismissal, ” and “[a]ny other course would . . .
place the credibility of the court in doubt and invite
abuse.” See Id. at 96.
court finds no error in the Report of the Magistrate Judge.
Plaintiff failed to respond to Defendants' Motion to
Dismiss, and the Magistrate Judge's Order warned that a
failure to respond could result in dismissal. Given the
Magistrate Judge's explicit warning and Plaintiffs
subsequent inaction, the court DISMISSES
Plaintiffs action for failure to prosecute.
reasons set forth herein, after a thorough review of the
Magistrate Judge's Report and Recommendation, the court
ACCEPTS the Magistrate Judge's Report
(ECF No. 24) and DISMISSES Plaintiffs
Complaint with prejudice (ECF No. 1) for failure to
prosecute, pursuant to Rule 41(b) of the Federal Rules of